Provident Life v. De Los Santos

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 95-20578
Summary Calendar
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PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY,

Plaintiff-
Counter Defendant-
Appellee,

VERSUS

CONRAD DE LOS SANTOS,

Defendant-
Counter Plaintiff-
Appellant.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
(CA-H-94-1671)
_________________________

December 28, 1995

Before KING, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Conrad de los Santos appeals a summary judgment in favor of

Provident Life & Accident Insurance Company (“Provident”) on

Provident’s declaratory judgment action and de los Santos’s

*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
counterclaims. Finding no error, we affirm.

I.

De los Santos participated in a series of internships with the

federal public health service while he was in medical school.

During one such internship, de los Santos suffered a knee injury

that prevented him from obtaining a permanent job with the health

service. He later completed medical school and now works as a

practicing physician.

Prior to the accident, de los Santos purchased a policy from

Provident providing coverage against total disability. Provident

made insurance payments to de los Santos for approximately one year

following his injury but then suspended them on the ground that he

was an active medical student.

Provident filed this action, seeking a declaratory judgment

that de los Santos is not entitled to benefits under the policy.

De los Santos counterclaimed, alleging breach of the insurance

contract and violations of the duty of good faith and fair dealing,

the Texas Insurance Code, and the Texas Deceptive Trade Practices

Act. The district court granted summary judgment to Provident.

II.

De los Santos contends that he is totally disabled from

performing his occupation as a medical officer in the public health

service. The policy states that the insured is totally disabled

if, because of injury or sickness, he is “not able to perform the

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substantial and material duties of [his] occupation.” The policy

further defines “occupation” as “the occupation . . . in which [the

insured is] regularly engaged at the time [he] become[s] disabled.”

Provident responds that de los Santos’s occupation at the time of

his accident was that of a student or physician, not an officer.

We review a grant of summary judgment de novo. Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." FED. R. CIV. P. 56(c). The

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

After a proper motion for summary judgment is made, the non-movant

must set forth specific facts showing that there is a genuine issue

for trial. Hanks, 953 F.2d at 997.

We agree with the district court, which held as follows:

[T]he uncontroverted summary judgment evidence is that at
the time of his injury, De Los Santos was not a career or
commissioned officer in the United States Public Health
Service. At the time of his injury, De Los Santos was a
medical student assigned to a limited term tour of duty
as a junior assistant health services officer for the
COSTEP internship program, with no permanent status in
the military. The uncontroverted summary judgment
evidence is that during his COSTEP assignments, De Los
Santos’s material duties were to provide routine clinical
services to patients, perform administrative services,
and interview patients. These duties are consistent with
an occupational classification as a medical student, and
as a doctor of osteopathic medicine. The mere fact that

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 at the time he was injured, De Los Santos practiced these
duties while taking part in a short-term Public Health
Service internship program open to students in a variety
of professional schools and vocational programs, does not
make his occupation that of an officer in the uniformed
medical corps.

De los Santos contends that the district court ignored

uncontradicted evidence that he is a permanently commissioned

officer. Other than his own affidavits, however, de los Santos

presents no evidence of this status. Provident, on the other hand,

presents uncontradicted evidence that the internship was a

temporary job, lasting no more than 120 days in any year, and did

not entitle de los Santos to a permanent job upon graduation.

Assuming arguendo that “commissioned medical officer” is a distinct

occupation, de los Santos has not met his burden of presenting

specific evidence that he was “regularly engaged” in such an

occupation at the time of his injury.

III.

De los Santos alleges in tort that unspecified advertising

misrepresented the extent of coverage. These tort claims are

merely restatements of his contract claim, however, as he alleges

only that the advertising states that the policy provides coverage

when an insured cannot work in his occupation or specialty. As the

district court found, de los Santos’s temporary internship was not

an occupation or specialty; it was simply a job.

We AFFIRM, essentially for the reasons ably stated by the

district court.

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